Firdaus Khan Bin Parit Khan v Cimb Bank Berhad (W-02(A)-475-03/2021)

ANITA AWAT RAM BINTI ABDULLAH (NRIC NO: 671113-10-5798) ... APPELLANTS AND CIMB BANK BERHAD (CO. REGISTRATION NO: 197201001799 [13491-P]) ... RESPONDENT [In the matter of High Court of Malaya in Kuala Lumpur, Wilayah Persekutuan (Civil Division) Originating Summons No: WA-24FC-418-03/2020 Between CIMB Bank Berhad (Company Registration No: 197201001799 [13491-P]) ... Plaintiff

Firdaus Khan Bin Parit Khan (NRIC No: 661112-08-6047)

Anita Awat Ram Binti Abdullah (NRIC No: 671113-10-5798) ... Defendants] CORAM RAVINTHRAN A/L N. PARAMAGURU, JCA WONG KIAN KHEONG, JCA AZIZUL AZMI BIN ADNAN, JCA JUDGMENT (Notice of Motion in court enclosure no.7)

This judgment discusses the following questions:

whether r 18(7) of the Rules of the Court of Appeal 1994 (RCA) has imposed a mandatory requirement for an appellant to file a record of appeal (RA) which contains a memorandum of appeal (MA) within 90 days from the date of the High Court's decision [90 Days Period (Filing of RA)] when the High Court's "written judgment or grounds of decision" (High Court's Written Judgment/Grounds of Decision) is not available before the lapse of the 90 Days Period (Filing of RA). This issue also concerns the following matters-

an interpretation of rr 1A, 18(1) and (7A) RCA; and

from the view point of the "stare decisis" doctrine, whether the "broad grounds" (Broad Grounds) of the Court of Appeal's decision in Aliff Syukri bin Kamarzaman v Mohamad Syazwan bin Shuhaimi, Civil Appeal no. B02(NCvC)-695-04/2022 (Aliff Syukri) binds the Court of Appeal with regard to the construction of r 18(7) and (7A) RCA; and

if-

r 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA before the expiry of the 90 Days Period (Filing of RA); and

the appellant has filed a RA within the 90 Days Period (Filing of RA) but the RA does not contain the MA because the High Court's Written Judgment/Grounds of Decision is not available before the lapse of the 90 Days Period (Filing of RA) can the respondent raise a preliminary objection (Respondent's PO) or apply to the Court of Appeal to dismiss or strike out the appeal solely on the ground that the appellant has failed to comply with the mandatory r 18(7) RCA (Respondent's Dismissal/Striking Out Application)? When the Respondent's PO has been raised or when the Respondent's Dismissal/Striking Out Application has been filed, whether the appellant can file an application to the Court of Appeal pursuant to r 93 RCA for an order to enlarge the 90 Days Period (Filing of RA) so as to allow the appellant to file a supplemental RA (SRA) which contains the High Court's Written Judgment/Grounds of Decision and MA.

I shall refer to the parties as they were in the High Court.

The plaintiff bank (Plaintiff) had filed a suit in the High Court against the defendants (Defendants).

On 23.2.2021, the High Court had delivered a decision in favour of the Plaintiff against the Defendants (High Court's Decision).

The Defendants appealed to the Court of Appeal against the High Court's Decision (This Appeal).

The Defendants filed their RA on 17.5.2021 [within the 90 Days Period (Filing of RA)]. However, the RA omitted the MA. This was because the High Court's Written Judgment/Grounds of Decision had not been provided by the learned High Court Judge (as he then was) before the expiry of the 90 Days Period (Filing of RA). Hence, the Defendants could not prepare the MA and include it in the RA.

The 90 Days Period (Filing of RA) lapsed on 24.5.2021.

The first Defendant （ $ 1^{\mathrm{st}} $ Defendant）was adjudicated by the court as a bankrupt on 22.9.2023. In This Appeal, Puan Hafizah Johor binti Ariff Johor, a legal officer attached to the Malaysian Department of Insolvency, represented the $ 1^{\mathrm{st}} $ Defendant. The Director General of Insolvency had given a sanction for the $ 1^{\mathrm{st}} $ Defendant to proceed with This Appeal pursuant to s 38(1)(a) of the Insolvency Act 1967.

On 21.12.2023, the second Defendant （ $ 2^{n d} $ Defendant) filed a notice of motion in the Court of Appeal (Enc.7). Enc.7 had applied for, among others, an extension of time from the Court of Appeal for the $ 2^{n d} $ Defendant to file a MA which had been exhibited as exhibit "AAR-1" [MA（ $ 2^{n d} $ Defendant's Affidavit)] in an affidavit affirmed by the $ 2^{n d} $ Defendant on 21.12.2023 (filed in support of Enc.7).

At the time of the filing of Enc. 7, the High Court's Written Judgment/Grounds of Decision was not available.

The learned High Court Judge provided a written judgment dated 20.3.2024 with regard to the High Court's Decision [High Court's Written Judgment (This Appeal)].

On 20.4.2024, the $ 2^{\mathrm{nd}} $ Defendant filed and served a SRA which contained the following documents:

the High Court's Written Judgment (This Appeal); and

the MA. C. Submission of parties

The Plaintiff's learned counsel, Ms. Praveena Sivanandan, had objected to Enc. 7 on the following grounds:

r 18(7) RCA employs an imperative term "shall". Consequently, r 18(7) RCA imposes a mandatory obligation on the Defendants to file the MA in the RA before the lapse of the 90 Days Period (Filing of RA). The Plaintiff's learned counsel had relied on three Court of Appeal's decisions, namely-

the judgment of Abdul Wahab Patail JCA in Owners of the Ship or Vessel Sasacom I v Bank Pembangunan Malaysia Bhd [2015] 4 MLJ 841 (Sasacom);

the Broad Grounds in Aliff Syukri; and

Viacor Asia Sdn Bhd v Arokiasamy a/l Thangaraju, Civil Appeal no. B-02(IM)(NCC)-1690-09/2022 (Viacor); and

the $ 2^{\mathrm{nd}} $ Defendant was guilty of inordinate delay of almost $ 2^{1 / 2} $ years [from the date of filing of the RA (17.5.2021) to the date of filing of Enc. 7 (21.12.2023)] [2nd Defendant's Delay (Filing of Enc. 7)] and there was no reasonable explanation for the 2nd Defendant's Delay (Filing of Enc. 7).

Mr. Kumaresan a/l Thurairaju, the $ 2^{n d} $ Defendant's learned counsel, had advanced the following contentions in support of Enc. 7:

there was an agreement between the parties' solicitors for the MA to be filed only after the Defendants had received the High Court's Written Judgment (This Appeal) [Alleged Parties' Agreement (Extension of Time to file MA)];

the Plaintiff was estopped from denying the Alleged Parties' Agreement (Extension of Time to file MA);

if Enc. 7 is dismissed by the Court of Appeal, there would be a grave injustice to the Defendants. This is because This Appeal would be dismissed by the Court of Appeal without considering the merits of This Appeal. If the Court of Appeal however allows Enc. 7, there is no prejudice to the Plaintiff because the Plaintiff is still entitled to resist This Appeal on its merits;

the Court of Appeal has inherent jurisdiction to allow Enc. 7 in the interest of justice; and

This Appeal has merits as is evident in the MA $ (2^{\mathrm{nd}} $ Defendant's Affidavit). In any event, the SRA (which contained the MA) had now been filed in court enclosure no.25. D. Can 2 $ ^{n d} $ Defendant rely on Alleged Parties' Agreement (Extension of Time to file MA)?

Rule 94 RCA provides as follows: "r 94 Enlargement of time by consent. The time for delivering, amending, or filing any document may be enlarged once only by consent in writing without application to the Court or a Judge, but such enlargement shall not exceed fourteen days." (emphasis added).

I am not able to accept the Alleged Parties' Agreement (Extension of Time to file MA). Firstly, r 94 RCA only allows parties to extend any time period stipulated in the RCA if there is "consent in writing" between the parties. The $ 2 ^{n d} $ Defendant is not able to produce any written consent of the solicitors of all the parties in This Appeal for an extension of time for the Defendants to file the MA beyond the 90 Days Period (Filing of RA). Furthermore, r 94 RCA only permits one extension of time which cannot exceed 14 days. E. Is there a mandatory requirement under r 18(7) RCA for an appellant to file MA within 90 Days Period (Filing of RA)?

I reproduce below rr 1A,3A,18,21,93,102 and 105 RCA: "r1A Court or Judge shall have regard to justice In administering any of [RCA] herein, the Court or a Judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of [RCA] herein. r 3A Preliminary objection on the ground of non-compliance shall not be allowed A Court or Judge shall not allow any preliminary objection by any party only on the ground of non-compliance of any of [RCA] unless the Court or Judge is of the opinion that such noncompliance has occasioned a substantial miscarriage of justice. r18 Memorandum of appeal

The appellant shall prepare a memorandum of appeal setting forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, and specifying the points of law or fact which are alleged to have been wrongly decided; such grounds to be numbered consecutively.

The appellant shall not without the leave of the Court put forward any other ground of objection, but the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.

The memorandum of appeal shall be substantially in Form 3 in the First Schedule.

The appellant shall attach to such memorandum copies of the proceedings in the High Court, including -

copies of the documents in the nature of pleadings, so far as is necessary for showing the matter decided and the nature of the appeal;

a copy of the Judge's notes of the hearing of the cause or matter in which the decision appealed against was given which may be recorded wholly or partly by mechanical means;

copies of all affidavits read and of all documents put in evidence in the High Court so far as they are material for the purposes of the appeal, and subject to rule 101 if such documents are not in the national language, copies of certified translations thereof;

a copy of the judgment, decree or order appealed from;

a copy of the written judgment or grounds of decision of the Judge, or a copy of the agreed notes of judgment as prepared by the parties and approved by the Judge, if such written judgment, grounds of decision or agreed notes as approved is made available within the time limited for filing the record of appeal; and

a copy of the notice of appeal.

The memorandum of appeal and the copies of the documents specified in subrule (4) shall be clear and legible. The Registrar may reject any memorandum and the copies of the said document, if in his opinion they are not clear or illegible.

A draft index of the documents to be included in the record of appeal shall be sent by the appellant's solicitors to the solicitors for the respondent who or (if more than one) any of whom may within forty-eight hours object to the inclusion or exclusion of any document. In the event of the parties being unable to agree, the matter shall be referred to the Registrar of the High Court who may require the parties to attend before a Judge of the said Court. The Registrar of the High Court as well as the parties shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal taking special care to avoid the duplication of documents and unnecessary repetition of headings and other merely formal parts of documents. Where in the course of preparation of the record one party objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party nevertheless insists on its being included, the record, as finally printed or typed shall, with a view to the subsequent adjustment of the costs of and incidental to such documents, indicate, in the index of papers, or otherwise, the fact that, and the party by whom, the inclusion of the document was objected to.

The memorandum and copies referred to in subrule (4), which together shall be called the record of appeal, shall be filed at the Registry within ninety days from the date on which the decision appealed against was given.

Notwithstanding subrule (7), if any copy of the documents specified in paragraph (4)(b), (d) or (e) is not available within ninety days from the date on which the decision appealed against was given, the appellant shall file the copy of the documents together with the memorandum of appeal as supplementary records of appeal within three weeks of being notified of its availability.

Notwithstanding subrules (7) and (7A), if any copy of the documents specified in paragraph (4)(b) or (e) is not available after ninety days from the date on which the decision appealed against was given, the court may order the appellant to proceed with his appeal.

Sufficient copies of the record of appeal for the use of the Judges of the Court shall be sent to the Registrar when the record of appeal is filed.

The appellant shall within the time limited for the filing of the record serve a copy thereof on each party who has been served with the notice of appeal.

The appellant shall, when filing his record of appeal in the Registry, submit to the Registrar a chronology of events from the date the action or the application was filed in the High Court to the date of filing of the record of appeal in the Registry. r21 Amendments

The Court may at any time allow amendment of any notice of appeal, or notice of cross-appeal, or memorandum of appeal, or other part of the record of appeal on such terms as it thinks fit.

If the memorandum of appeal is not drawn up in the prescribed manner, the appeal may be dismissed.

If any part of the record of appeal is not filed, or any copy thereof is not supplied within the prescribed time, and no sufficient ground is shown for the delay, the appeal may be dismissed. r 93 Power of Court or Judge to enlarge or abridge time. The Court or a Judge shall have power to enlarge or abridge the time appointed by [RCA], or fix by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that when the time for delivering any pleading or document or filing any affidavit, answer or document, or doing any act is or has been fixed or limited by any of [RCA] or by any direction on or under the summons for directions or by an order of the Court or a Judge the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application. r102 Non-compliance with [RCA] not to render proceedings void Non-compliance with any of [RCA], or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit. r 105 Inherent powers of the Court. For the avoidance of doubt, it is declared that nothing in [RCA] shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court." (emphasis added).

I will discuss the following three scenarios:

the first scenario （ $ 1^{\mathrm{st}} $ Scenario) is when the High Court's Written Judgment/Grounds of Decision has been prepared within the 90 Days Period (Filing of RA);

in the second scenario ( $ 2^{\mathrm{nd}} $ Scenario), the High Court's Written Judgment/Grounds of Decision is only available after the expiry of the 90 Days Period (Filing of RA); and

the High Court's Written Judgment/Grounds of Decision is not available for whatever reason ( $ 3^{rd} $ Scenario).

In the 1 $ ^{st} $ Scenario, I am of the following opinion:

in view of the employment of the imperative term "shall" in r 18(7) RCA, r 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA within the 90 Days Period (Filing of RA); and

if an appellant fails to comply with r 18(7) RCA, the appellant may apply to the Court of Appeal under r 93 RCA for an extension of time [Appellant's Application (Extension of Time)] to file a SRA which contains the High Court's Written Judgment/Grounds of Decision and MA - please refer to paragraph 28 below.

With regard to the $ 2^{\mathrm{n d}} $ Scenario, I am of the view that r 18(7) RCA does not mandatorily require an appellant to file a RA which contains a MA before the lapse of the 90 Days Period (Filing of RA). This view is supported by the following reasons:

r 18(7) RCA is subject to r 18(7A) RCA due to the use of the word "Notwithstanding" employed by the Rules Committee in r 18(7A) RCA. The effect of the term "notwithstanding" has been explained by Low Hop Bing J (as he then was) in the High Court case of OCBC Bank (M) Bhd v Tan Eng Kwee [2003] 3 CLJ 161, at 165, as follows- "The phrase "Notwithstanding sub-s. (2)" in s. 8(2A) [of the then named Bankruptcy Act 1967] means that s. 8(2) is to be disregarded in so far as it is inconsistent with s. 8(2A) so that the provisions of s. 8(2A) shall prevail and play a predominant role to the exclusion of s. 8(2) which has been rendered subservient to s. 8(2A)." (emphasis added);

r 18(7A) RCA has expressly provided that in the $ 2^{nd} $ Scenario, an appellant "shall" file the MA within 3 weeks after being notified of the availability of the High Court's Written Judgment/Grounds of Decision {3 Weeks Period [Rule 18(7A) RCA]}. If r 18(7) RCA is mandatory in the $ 2^{nd} $ Scenario, this will render r 18(7A) RCA redundant;

r 18(7A) RCA has been inserted by the Rules Committee with effect from 1.8.2012 by way of the Rules of the Court of Appeal (Amendment) 2012 [PU (A) 234/12] [2012 Amendment (RCA)]. In the case of the $ 2^{nd} $ Scenario, if r 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA before the lapse of the 90 Days Period (Filing of RA), this will defeat the purpose of the 2012 Amendment (RCA) which has expressly inserted r 18(7A) RCA;

r 1A RCA provides that in the administration of the RCA, including r 18(7) and (7A) RCA, the Court of Appeal "shall have regard to the justice of the particular case and not only to the technical non-compliance" of r 18(7) RCA. With regard to the $ 2^{\mathrm{nd}} $ Scenario, it is only in the interest of justice for an appellant to file a SRA (containing the High Court's Written Judgment/Grounds of Decision and MA) within the 3 Weeks Period [Rule 18(7A) RCA]. This is because according to r 18(1) RCA, a MA "shall" set "forth concisely and under distinct heads, ... the grounds of objection to the decision appealed against, and specifying the points of law or fact which are alleged to have been wrongly decided" by the High Court. How can an appellant draft a MA when the High Court's Written Judgment/Grounds of Decision is not available? Furthermore, the High Court may not provide any oral reason when the High Court's Decision is delivered. In such a situation, an appellant is hard pressed to draft a MA and the MA may consist of the speculation of the appellant's learned counsel on how the High Court's Decision is arrived at and how the learned High Court Judge or Judicial Commissioner has erred in fact and/or in law (Appellant's Speculation). Accordingly, the above interpretation of r 18(1), (7) and (7A) RCA is in consonance with justice as mandated by r 1A RCA;

the above construction of r 18(7) and (7A) RCA is supported by the following practical considerations-

if r 18(7) RCA mandatorily requires an appellant to file a RA which contains a MA before the expiry of the 90 Days Period (Filing of RA) -

within the 90 Days Period (Filing of RA), a RA has to be filed which contains a MA (that may comprise the Appellant's Speculation). Upon an appellant's failure to comply with r 18(7) RCA, the Appellant's Application (Extension of Time) has to be filed;

(ii) after the High Court's Written Judgment/Grounds of Decision is available, an appellant may file a Notice of Motion for leave of the Court of Appeal under r 21(1) RCA to amend the MA based on the High Court's Written Judgment/Grounds of Decision [Amendment Application (MA)]; and

(iii) the respondent may object to the Appellant's Application (Extension of Time) or Amendment Application (MA);

if r 18(7A) RCA prevails over r 18(7) RCA-

an appellant is only required to file a RA (without a MA) within the 90 Days Period (Filing of RA); and

(ii) when the appellant receives the High Court's Written Judgment/Grounds of Decision, the appellant is only obliged to file a SRA (containing the High Court's Written Judgment/Grounds of Decision and MA) within the 3 Weeks Period [Rule 18(7A) RCA]; and

the following practical benefit may ensue from the above interpretation of r 18(7) and (7A) RCA-

the Court of Appeal is not unduly burdened by the Respondent's Dismissal/Striking Out Applications, Appellant's Applications (Extension of Time) and Amendment Applications (MA);

(ii) appellants do not have to prepare MAs without the benefit of the High Court's Written Judgment/Grounds of Decision; and

(iii) both the appellants and respondents need not expend time, effort and costs in respect of the Respondent's Dismissal/Striking Out Applications, Appellant's Applications (Extension of Time) and Amendment Applications (MA);

the above view regarding r 18(7) and (7A) RCA does not cause any injustice to a respondent because the appeal has yet to be heard. I am unable to foresee any prejudice to a respondent in such circumstances. Furthermore, when the appeal is subsequently heard, the respondent is still entitled to oppose the appeal on its merits to the hilt; and

cases decided before the introduction of r 18(7A) RCA have to be read with caution.

With respect to the following two Court of Appeal cases relied on by the Plaintiff's learned counsel-

the facts in Sasacom did not concern the application of r 18(7) and (7A) RCA; and

in Viacor, the "Case Management System" (CMS) records showed that on 14.9.2023, the Court of Appeal (comprising Hanipah Farikullah, See Mee Chun and Dr. Choo Kah Sing JJCA) had allowed the appellant's application for, among others, an order that the filing of the SRA (containing the MA) after the expiry of the 90 Days Period (Filing of RA) was valid and deemed to have complied with r 18(7) and (7A) RC. In any event, the Court of Appeal has not delivered a written judgment in Viacor.

In the 3rd Scenario, ie., the High Court's Written Judgment/Grounds of Decision is not available at all, I am of the following view:

r 18(7B) RCA empowers the Court of Appeal to order an appellant to proceed with the appeal [Order (Appeal Without High Court's Written Judgment/Grounds of Decision)]; and

even though the appellant does not have the benefit of the High Court's Written Judgment/Grounds of Decision, the Order (Appeal Without High Court's Written Judgment/Grounds of Decision) should include an order for the appellant to file a MA. In the exceptional circumstances as in the $ 3^{\mathrm{rd}} $ Scenario, the MA will then assist the parties and the Court of Appeal to decide the appeal when the High Court's Written Judgment/Grounds of Decision is not available. F. Effect of Broad Grounds

In Aliff Syukri, the Court of Appeal has delivered the following Broad Grounds (quoted verbatim in its entirety based on CMS records): "This is our decision on preliminary objection raised by the respondent's counsel. We have considered the rival contention of both parties in respect of the preliminary objection. We have considered issues that have been raised and we come to unanimous decision. It is our considered view that the PO raised by the respondent has substance and merit in law and the facts as well as shown by chronology of events that have been referred to us. Order 18 Rule 7 of COA [sic] in our view is mandatory provision and calls for strict compliance. It is very clear the existence of Rule 7A [sic] is not in our view exception to mandatory requirement under Rule 7 [sic] one of which is to file memorandum of appearance together with record of appeal there is no exception to that. Moreover, on the facts before us rule 7A [sic] cannot be invoked by the appellant as they were till today there is no ground of judgment received by the appellant. If ground of judgment received then there is prescribed period to file a memorandum of appeal this does not refer to memorandum of appeal that is required to be filed in the appeal record itself. Importantly from the record brief were in fact pronounced by the learned judge which to us are quite clear as to the reasons why the application was allowed by the learned judge. As such there was clearly no reasonable explanation for the non-filing of the memorandum of appeal as required at the first stage itself. Filing of the memorandum of appeal of an inordinate delay merely at the convenience of appellant on the basis that no full ground of judgment received would in our view set an unhappy precedent contrary to an intention and mischief of the Rules of Court of Appeal to promote fair and expeditious disposal of appeals. Hence, we are constrained to allow the preliminary objection raised by the respondent and accordingly struck out the appeal. Cost of RM2,000.00 subject to allocator." (emphasis added).

Firstly, Broad Grounds are important for the following reasons:

Broad Grounds provide a summary of the reasons for the decisions of the Court of Appeal. All the parties to an appeal to the Court of Appeal and their learned counsel (especially the party who is not successful in the appeal), are entitled to know the reasons for the Court of Appeal's decision, especially when the appeal emanates from a subordinate court and the decision of the Court of Appeal is therefore final;

if an appeal to the Court of Appeal originates from the High Court, by way of the Broad Grounds, all the parties to an appeal and their learned counsel can make an informed decision on whether to file an application to the Federal Court for leave to appeal against the Court of Appeal's decision [Leave Application (Federal Court)]; and

Broad Grounds may assist the Federal Court to decide Leave Applications (Federal Court).

Initially, from the view point of the stare decisis doctrine, I had my doubts on whether a ratio decidendi can be extracted from Broad Grounds. I have however been provided with a draft judgment prepared by my learned brother, Azizul Azmi Adnan JCA (Azizul Azmi Adnan JCA's Judgment). Having read Azizul Azmi Adnan JCA's Judgment, I agree with its contents that, with the greatest respect, the Broad Grounds in Aliff Syukri are per incuriam r 18(7A) RCA. Consequently, the Broad Grounds in Aliff Syukri do not bind this Court of Appeal in deciding Enc. 7. G. Should Court of Appeal dismiss or strike out appeal merely due to appellant's breach of r 18(7) RCA?

I will now assume that r 18(7) RCA is mandatory and has been breached by an appellant {Breach [Rule 18(7) RCA]}. In the event of a Breach [Rule 18(7) RCA], how should the Court of Appeal decide on the following matters:

the Respondent's PO;

the Respondent's Dismissal/Striking Out Application; and

the Appellant's Application (Extension of Time)?

Firstly, with regard to the Respondent's PO and Respondent's Dismissal/Striking Out Application, I express the following opinion:

according to r 102 RCA, a Breach [Rule 18(7) RCA] "shall not render any proceedings void". In other words, the Court of Appeal cannot allow the Respondent's PO and Respondent's Dismissal/Striking Out Application solely on the ground that a Breach [Rule 18(7) RCA] has been committed;

by virtue of r 3A RCA, the Respondent's PO can only be allowed if the Breach [Rule 18(7) RCA] has caused "a substantial miscarriage of justice" to the respondent. As explained in the above sub-paragraph 20(6), I am not able to see any prejudice, let alone a substantial miscarriage of justice, which can be caused to the respondent due to the Breach [Rule 18(7) RCA];

r 21(3) RCA only allows the Court of Appeal to dismiss an appeal due to a delay in the filing of a RA if "no sufficient ground is shown for the delay". The fact that the High Court's Written Judgment/Grounds of Decision is not available is a sufficient ground to explain the delay in filing a RA or SRA which contains the High Court's Written Judgment/Grounds of Decision and MA;

if the Respondent's PO or Respondent's Dismissal/Striking Out Application is allowed [Court of Appeal's Dismissal/Striking Out (Appeal)], there may be irreparable prejudice to the appellant as follows-

the appeal is dismissed or struck out without its merits being heard and decided by the Court of Appeal;

if the appeal originates from a subordinate court, the Court of Appeal's Dismissal/Striking Out (Appeal) is final; or

if the appeal emanates from the High Court, the appellant has no right under s 96(a) of the Courts of Judicature Act 1964 (CJA) to apply to the Federal Court for leave to appeal against the Court of Appeal's Dismissal/Striking Out (Appeal). Section 96 CJA is reproduced below - "s 96 Conditions of appeal. Subject to any rules regulating the proceedings of the Federal Court in respect of appeals from the Court of Appeal, an appeal shall lie from the Court of Appeal to the Federal Court with the leave of the Federal Court-

from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage; or

from any decision as to the effect of any provision of the Constitution including the validity of any written law relating to any such provision." (emphasis added). An appellant cannot apply to the Federal Court for leave to appeal against the Court of Appeal's Dismissal/Striking Out (Appeal) because the Court of Appeal's Dismissal/Striking Out (Appeal) is not a "judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction" within the meaning of s 96(a) CJA; and

if the Breach [Rule 18(7) RCA] has occasioned any prejudice to the respondent, the court should consider the fact that such a prejudice may be compensated in the form of costs to be paid by the appellant to the respondent.

With regard to the Appellant's Application (Extension of Time), the following matters are pertinent:

the delay in filing the MA may have been caused solely by the non-availability of the High Court's Written Judgment/Grounds of Decision. In such a case, the appellant cannot be guilty of any delay, let alone inordinate delay, in filing a RA or SRA which contains the High Court's Written Judgment/Grounds of Decision and MA;

if the court allows the Appellant's Application (Extension of Time), there is no injustice to the respondent - please refer to the above sub-paragraph 20(6). Even if there is any prejudice caused to the respondent, such a prejudice may be compensated by an order of costs to be paid by the appellant to the respondent; and

if the Appellant's Application (Extension of Time) is refused, there will be an injustice to the appellant as explained in the above sub-paragraph 27(4). H. Can Court of Appeal resort to r 105 RCA, its inherent jurisdiction and/or inherent power to decide Enc. 7?

It is clear from the following two judgments of our highest courts that if the court is conferred a power by an express statutory provision, the court cannot then resort to the court's inherent jurisdiction and/or inherent powers:

the Supreme Court's judgment delivered by Syed Agil Barakbah SCJ in Permodalan MBF Sdn Bhd v Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors [1988] 1 MLJ 178, at 181; and

the judgment of Zulkefli Ahmad Makinudin FCJ (as he then was) in the Federal Court case of Majlis Agama Islam Selangor v Bong Boon Chuen [2009] 6 MLJ 307, at [28].

As r 93 RCA has expressly conferred a discretionary power on the Court of Appeal to decide Enc. 7, I cannot therefore accede to the submission by the $ 2^{\mathrm{nd}} $ Defendant's learned counsel for this court to invoke r 105 RCA, the Court of Appeal's inherent jurisdiction and/or inherent power. I. Outcome of Enc.

I have no hesitation to apply r 93 RCA and allow Enc. 7. The following reasons support this exercise of discretion:

the $ 2^{\mathrm{nd}} $ Defendant's delay in filing the SRA [which contained the High Court's Written Judgment (This Appeal) and MA] in this case was due solely to the non-availability of the High Court's Written Judgment (This Appeal). In other words, the $ 2^{\mathrm{nd}} $ Defendant was not guilty of any indolence;

by allowing Enc. 7, no prejudice is caused to the Plaintiff because-

the Plaintiff has not filed any written submission to oppose This Appeal; and

no hearing date has been fixed for This Appeal;

the $ 2^{\mathrm{n d}} $ Defendant has now filed the SRA and the hearing of This Appeal will not be delayed any further; and

if there is any prejudice caused to the Plaintiff by the court's granting of Enc. 7, such a prejudice can be compensated by costs to be paid by the $ 2 ^{n d} $ Defendant to the Plaintiff.

Premised on the above reasons, Enc. 7 is allowed with the following order:

an extension of time and leave of the Court of Appeal is granted for the $ 2^{\mathrm{nd}} $ Defendant to file the SRA (which included the MA); and

the $ 2^{\mathrm{nd}} $ Defendant shall pay costs of Enc. 7 in a sum of RM2,000.00 to the Plaintiff.

I have forwarded the draft copy of this judgment to my learned brothers, Ravinthran a/I Paramaguru and Azizul Azmi Adnan JJCA. Both of them have expressed their concurrence with this judgment. DATE: 4 JUNE 2024 WONG KIAN KHEONG Judge For the 1 $ ^{st} $ Appellant: Court of Appeal Puan Hafizah Johor binti Ariff Johor (Malaysian Department of Insolvency) For the 2 $ ^{n d} $ Appellant: Mr. Kumaresan a/I Thurairaju & Puan Azleen Farahannis Evani binti Azlan (Messrs Thurairaj T Kumar & Associates) For the Respondent: Ms. Praveena Sivanandan (Messrs Seow & Megat)